Law, Book 4 · Chapter 27 – Chapter 29
CHAP. 27.
Of Counts.
THus farre of the beginning … ſuite: The proceeding hath … parts, Count and pleading (which two are but one in pleading) … ther meane acts.
A condition (annexed to an … 11. H. 7. 22.freehold) cannot bee alledged in … or pleading vnleſſe it be by deed: Bee it … …erſonell or reall actions. But a condition …nit to a leaſe for yeares, or grant of a ward…hip, 11. H. 7. ibid. Lit. 85.or other chattell Reall may. Yet the Iu…ie vponupon the generall iſſue (as …ultor… nul …iſſeiſin in an aſſiſe) may find it if they will. …nd thereby the partie ſhall hauehave aduan…ge of it.
Count is a larger declaration for the …me, place, quantitie of the land, and other …ch things of the ſubſtance of the originall …rit. And therefore in a formedon of foure …cres and Count but of one, all the Writ 8 E. 4. …. 45. E. 3. 25.…hall abate, for it is not purſued. In an ap…eale of murder, he cannot declare that the …efendant traiterouſly killed him as he was …oing to ſuccour the King, in his warres …ith xx. men in his company, &c. for the …rit ſuppoſeth no treaſon.
Statutes.
36. E. 3. cap. 15. Declarations ſhall bee …ood enough if they hauehave matter of ſub…tance, though the termes be not apt.
In reall actions which are in the right but not in meere poſſeſſorie ones) the de…andant muſt alledge the taking of the …rofits, we call it eſplees, in the declaration. As in pleas of la…d, the taking of the profits …f the land as errable, meadow, and …aſture, &c. if of a pond, then by taking the …iſh there, as Breames, &c. In a writ of right …f auowſon, the eſplees ſhall be laid in his 8. E. 3. 381. 26. H. 8. 3.Clarks taking the great and ſmall tythes. In an aſſiſe of an office as of a filizarie, &c. ſeiſin ſhall bee alledged by the taking of …. Mar. Dy. 114. 13. H. 8. 16. 19. H. 6 32.iiij. d. for making out a capias, or ſuch like. In a quod permittat, by the taking of common by the mouth of his beaſts. In a natiue habendo, eſplees ſhall be alledged in the villeine, viz. in taxing him high and low at his pleaſure, in making his profit of him; to driue his cattell, to carrie away his doung, and to do all other kind of villeine ſeruice, Br. Eſplees. 11. 21. H. 6. 22.&c. But in a writ of Eſchete, in a writ of right ſur diſclaimer, and ſuch like, which are founded vponupon the ſeigniory, and not vponupon any ſeiſin of the land it ſelfe, no eſplees ſhall be alledged. And theſe eſplees where they are to be alledged, muſt be alledged in himſelfe, if the action be brought of his owne ſeiſin in his anceſtor; if it be brought of his anceſtors ſeiſin, where it cannot be brought but of the ſeiſin of ſome other, there it muſt be alledged in thoſe other. As in a formed on en deſcender the eſplees ſhal 9. H. 6. 53. 50. E. 3. 1.be alledged onelyonly in the donee. In a formedon en remainder for an eſtate taile, onelyonly in the particular Tenant to proue the eſtate taile executed. In a formedon en reuerter, they muſt be alledged both in the donee and the donee, for there a fee ſimple is demanded. In a leaſe for life the remainder in taile, and the leſſee for life, and he in the remainder in taile dye, the iſſue in taile ſhall hauehave a formedon en deſcender, and make no mention of the Tenant for life. And therefore the eſplees ſhall be onelyonly alledged in tenant in taile, otherwiſe it is in the like caſe of a reuerſion in taile granted.
In ſtead of Count, a plaint ſhall bee made in aſſiſes of nouell diſſeiſin, and in writs of dower a demand.
CHAP. 28.
Of pleading.
PLeading is the parties debating of the ſuite.
Euerie plea, as Barre, replication, reioynder, Surreioynder, &c. muſt be 7. El. Ploy. 343.aſſered to be proued true. By ſaying in the plea, Et hoc patro natus eſt verificare, which we call an auerment. But no auerment need to be in auowrie, for it is in liew of a Count and declaration. And the auowant is in a manner actor and plaintife, and to hauehave a returne,
An aduantage of a matter which cannot be pleaded, ſhall be ſaued by proteſting not acknowledging it to be true, although matter pleaded paſſe againſt him As if an infant bring an action of waſte againſt his 48. E. 3. 10.gardein, and appeare by Atturny (which none ſhould do but one of full age) if the gardein take his nonage by proteſtation becauſe he cannot plead it, it ſhall ſaue him from all miſchiefe. But in detinue brought by the Executor of A. the defendant cannot take by proteſtation, that A. made not the 4. El. Plo. 276.plaintife his executour, for that is the verie ground of the ſuit, and may be denied by anſwer, and iſſue ioyned vponupon it. And a proteſtation is but a ſauing to the partie that taketh it, from being concluded of ſome matter alledged againſt him, whereupon he cannot ioyne iſſue.
Pleas are either of the defendant when he is firſt brought in to anſwer, or the mutuall pleas of both. In a ioynt action againſt two or more: as in (a)48. E. 3. 1.an action of debt. But otherwiſe it is in a writ of (b)1. H. 7. 25.conſpiracie againſt two, for they are ſeuerall wrongs, one of them appearing ſhal not anſwer. But muſt hauehave idem dies till the other come in to anſwer, or (c)41. E. 3. 3.the ſuit be finiſhed againſt him. As by death or outlary in a perſonall action, debt, accompt, or ſuch like.
An action by or againſt an Infant as heire, as (d)48. E. 3. 33.a formdon en deſcender brought by him, or a writ of (e)9 H 6. 46.error againſt him where his aunceſtor recouered; but (f)age 16.not where he commeth in of his owne wrong ſhall not proceed till his full age, vnleſſe it be apparant that by proceeding hee cannot be preiudiced. As in (g)48. E. 3. 33.a formedon en deſcender by an Infant, if the tenaunt plead a warrantie with aſſets againſt him, the parroll ſhall demurre, for if he trauerſe the aſſets hee ſhould acknowledge the deed of warrantie. But (h)48. E. 3. ibid.if the tenant pleade a recouerie in auoidance of the eſtate taile, the parroll ſhall not demurre: for there the Court ſhall plead for him. But (i)12: E. 4. 17. Age 18.it ſhall not demurre in a writ of entrie ſur diſſeiſin by an infant, though the tenaunt pleade a matter enfait, as a feoffement with warrantie by the anceſtor of the infant, for there the infant claimeth of his owne poſſeſſion. And if an infant and his anceſtor be Iointenants 48. E. 3. 35.in fee, and the infant ſuruiueth: in a praecipe quod reddat againſt the infant hee ſhall not hauehave his age.
Statutes.
Weſtm 2. cap 40. The husbands heire called to warranty by the alience by a Cui in vita ſhall not hauehave his age.
Gloceſt. cap. 2. An infant holden out of his heritage after the death of his father, coſin, grandfather, great grandfather, in an action thereupon ſhall not hauehave his age.
Weſtm. 1. ca 46. In a writ of entrie by the heire of the diſſeiſee the ſuit ſhall not ſtay for his nonage, no more ſhall it for the nonage of the heire of the diſſeiſor, if the diſſeiſee bring his aſſiſe, and before the aſſiſe paſſe the diſſeiſor dye. The like incorporations where the lands go by ſucceſſion. But in a writ of dower an infant heire ſhall not 39. H. 6. 39.hauehave his age, (a)44. E. 3. 4….nor the heire of the vouchee, in a Quod ei deforceat vponupon a recouerie in a writ of dower, for it is in the nature of the fitſt writ.
CHAP. 29.
Of Pleas to the Iuriſdiction and Perſon.
THe Defendants firſt pleas are dilatorie, or to the action.
Dilatorie, which are before … plea in barre.
When an action is brought againſt many, they muſt ioyne in the plea … 12. H. 7. 3.they plead theſe dilatories, for in a praecipe quod reddat, one cannot demand the view, and the other pray in aide, nor one pray in aide of one man, and the other of another man.
Dilatorie pleas are exceptions, or forrein Aduantages.
Exceptions are ſuch dilatories g… ded vponupon the matter it ſelfe of the ſuit. And are in diſhabilitie or abatement. Thoſe in diſhabilitie, are to the Iuriſdiction or Perſon. Bracton.Both which muſt be before the count made.
To the Iuriſdiction, when it is alledged that the Court ought not to hold plea of it.
To the Perſon, when it is alledged that the Plaintife ought not to be anſwered, as 3. H. 6. 40. Lit. 44.if he be outlawed, excommunicated, &c. In which latter caſe the ſuite ſhall bee put without day, onelyonly till he be abſolued.